United States District Court, District of Columbia
BERMAN JACKSON United States District Judge.
has filed a motion to remand this removed action to the
Superior Court of the District of Columbia. Pl.'s Opposed
Mot. for Remand to Super. Ct. of D.C. [Dkt. # 17]
(“Pl.'s Mot.”). Because the Court concludes
that it lacks jurisdiction, it will grant the motion and
remand the case.
January 8, 2016, plaintiff, the District of Columbia Water
and Sewer Authority, brought a negligence action in the
Superior Court of the District of Columbia against defendants
First Hand Land, LLC (“First Hand”); Bello,
Bello, and Associates, LLC (“Bello”); several
employees of the D.C. Department of Consumer and Regulatory
Affairs (“DCRA”); Edge Investment, LLC
(“Edge”); and Edge's Chief Executive Officer,
seeking recovery for damage caused to the Northeast Boundary
Tunnel Sewer during the course of a construction project.
Compl. [Dkt. # 11-5] at 126-43. Plaintiff filed an amended
complaint on April 7, 2016. First Am. Compl. [Dkt. # 11-4] at
October 24, 2016, defendant Edge filed a counterclaim against
plaintiff DC Water and Sewer, claiming violations of the
constitutional guarantee of due process, unconstitutional
taking of private property, trespass, and negligence.
Edge's Countercls. & Demand for Jury Trial [Dkt. #
11] at 254-68. Edge filed an amended counterclaim on February
1, 2017, alleging additional violations of its procedural and
substantive due process rights. Edge's Am. Countercls.
& Demand for Jury Trial [Dkt. # 22]. And on November 7,
2016, Edge filed a third-party complaint against defendant
the District of Columbia. Edge's Third Party Compl. &
Demand for Jury Trial [Dkt. # 11] at 162-78. The third-party
complaint alleges that the District violated Edge's due
process rights, and that the District authorized an
unconstitutional taking of Edge's property, among other
response to the counterclaim filed against it by Edge, DC
Water and Sewer filed a third-party complaint for
contribution and indemnification against Pinpoint
Underground, LLC. Third-Party Compl. [Dkt. # 11] at 207-11.
December 16, 2016, the District of Columbia filed a notice of
removal which purported to remove Edge's third-party
complaint to this Court. Notice of Removal [Dkt. # 1].
January 19, 2017, the original plaintiff, DC Water and Sewer,
filed a motion to remand the case to the Superior Court.
Pl.'s Mot. The party that removed the matter, the
District of Columbia, subsequently notified the Court that it
would not oppose remand. Praecipe Notifying Ct. That D.C.
Does Not Opp. Remand [Dkt. # 26] (“D.C.'s Non-Opp.
of Remand”) at 2. However, Pinpoint Underground and
Edge both oppose plaintiff's request to remand the case.
Third Party Def. Pinpoint Underground LLC's Opp. to
Pl.'s Mot. for Remand [Dkt. # 21] (“Pinpoint's
Opp.”); Edge's Mem. in Opp. to Pl.'s Mot. [Dkt.
# 27] (“Edge's Opp.”). Plaintiff has replied
in support of its motion. Combined Reply to Opps. to
Pl.'s Mot. [Dkt. # 29].
the removing party, the District of Columbia, does not oppose
remand. D.C.'s Non-Opp. of Remand at 2. It is unclear
whether Edge, which chose to litigate its claims in Superior
Court in the first instance, or Pinpoint, a third-party
defendant, has standing to oppose the motion. But even if
they can be heard on this issue, the law tends to favor
remand under these circumstances.
courts are courts of limited jurisdiction, and the law
presumes that “a cause lies outside this limited
jurisdiction.” Kokkonen v. Guardian Life Ins. Co.
of Am., 511 U.S. 375, 377 (1994); see also Gen.
Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004)
(“As a court of limited jurisdiction, we begin, and
end, with an examination of our jurisdiction.”). The
federal removal statute, 28 U.S.C. § 1441, provides that
civil actions “may be removed by the defendant or the
defendants” when the claim “aris[es] under the
Constitution, law or treaties of the United States.” 28
U.S.C. § 1441. “The presence or absence of
federal-question jurisdiction is governed by the
‘well-pleaded complaint rule, ' which provides that
federal jurisdiction exists only when a federal question is
presented on the face of the plaintiff's properly pleaded
complaint. The rule makes the plaintiff the master of the
claim.” Caterpillar Inc. v. Williams, 482 U.S.
386, 392 (1987).
case, plaintiff's complaint alleges negligence under
state law. See First Am. Compl. While the D.C.
Circuit has not addressed the issue, courts in this district
have consistently applied Caterpillar to conclude
that a “cause of action arises under federal law only
when the federal claim can be found on ‘the face of the
complaint and only the face of the complaint.'”
U.S. Airways Master Exec., Council v. Am. West Master
Exec. Council, 525 F.Supp.2d 127, 132-33 (D.D.C. 2007),
quoting Strategic Lien Acquisitions LLC v. Republic of
Zaire, 344 F.Supp.2d 145, 148 (D.D.C. 2004); see
also Zuurbier v. MedStar Health, Inc., 306 F.Supp.2d 1,
4 (D.D.C. 2004). And while circuits are split on the issue,
the majority of the circuits that have considered the issue
have concluded that a third-party defendant may not remove an
action under section 1441(c). See First
Nat'l Bank of Pulaski v. Curry, 301 F.3d 456, 463-64
(6th Cir. 2002); Lewis v. Windsor Door Co., 926 F.2d
729, 733 (8th Cir. 1991); Thomas v. Shelton, 740
F.2d 478, 487 (7th Cir. 1984); but see Carl Heck
Eng'rs, Inc. v. Lafourche Par. Police Jury, 622 F.2d
133, 135-36 (5th Cir. 1980) (authorizing third-party removal
if the claim is separate and independent from the plaintiffs
original claim). Leading commentators on civil procedure
ascribe to the majority view. See 14B Charles Alan
Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice & Procedure § 3722.3 (4th ed. 2017).
under the circumstances here, where the removing party does
not oppose remand, the Court will follow other courts in this
district and the majority of the circuits that have concluded
that a third-party defendant may not remove an action to
federal court. Because there are no federal claims on the
face of plaintiff s complaint, Caterpillar, 482 U.S.
at 392, the Court lacks subject matter jurisdiction over this
action. It is hereby ORDERED that plaintiff
s motion to remand is GRANTED. This case
shall be remanded to the Superior Court of the District of